EFF defends controlled digital lending on appeal
Electronic Frontier FoundationCounsel for Internet Archive, alongside Morrison Foerster
EFF advances Internet Archive's argument that controlled digital lending preserves traditional library lending and qualifies as fair use.
Responding to
Controlled digital lending of owned in-copyright books should qualify as fair use without publishers' permission.
“Action: Filed an appellate brief for Internet Archive defending controlled digital lending of owned books as fair use.”
Official statement
Where this statement fits
Should the Internet Archive need publishers' permission to lend scans of in-copyright books it owns?
In June 2020, Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House sued the Internet Archive for scanning print books and lending the digital copies online without their permission, usually one borrower at a time for each print copy the Archive or a partner library owned. A federal district court in New York rejected the Archive's fair-use defense on March 24, 2023, and on September 4, 2024, the Second Circuit affirmed, finding the lending noncommercial but not transformative and declining to carve out books the Archive owns itself. The Archive, represented by the Electronic Frontier Foundation, called the practice controlled digital lending and said it is what libraries have always done with the books they acquire; the Association of American Publishers said authors and publishers have the right to license and be paid for their books. On December 4, 2024, the Archive said it would not seek Supreme Court review, ending the case, but would keep advocating for libraries to own and lend digital books. The dispute is over whether owning a print copy of an in-copyright book should let the Archive lend a scan of it without the publisher's permission.
Source and context
Official statement
About this source
EFF represented Internet Archive with Morrison Foerster. Its defense of digital lending is a litigation position, not an independent assessment by an uninvolved organization.
Archived copy (opens in a new tab)Before the quotation
EFF's release of December 15, 2023 opens: "A cartel of major publishing companies must not be allowed to criminalize fair-use library lending, the Internet Archive argued in an appellate brief filed today." It then describes the Archive as a San Francisco nonprofit library before saying the brief was filed in the Second Circuit by EFF and Morrison Foerster on the Archive's behalf.
After the quotation
The release quotes Brewster Kahle, the Archive's founder, saying the lawsuit is about preserving the integrity of the published record. It says every book lent this way has already been bought and paid for, and quotes the brief's argument that the district court wrongly treated controlled digital lending as "equivalent to indiscriminately posting scanned books online".
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
The case asks whether the Internet Archive should need publishers' permission to lend scans of in-copyright books it owns. EFF's release says the Archive's appellate brief, which EFF filed with Morrison Foerster, explains that the Archive's controlled digital lending program "is a lawful fair use that preserves traditional library lending in the digital world". That defends lending scans of owned books without the publishers' permission, so we labeled it Defended or excused. The closest competing label is Challenged the characterization, since the brief says the district court wrongly equated controlled digital lending with posting scanned books online; it loses because the brief asks the appeals court to uphold the lending as lawful.
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More from this case
Read the full caseAAP says authors and publishers should control the terms of digital access
Association of American Publishers
“when authors and their publisher licensees can decide the terms on which they make their works available.”Read statement
AAP says unauthorized lending harms the public interest
Association of American Publishers
“infringement is both costly and antithetical to the public interest.”Read statement
Internet Archive continues to defend library lending rights
Internet Archive
“will continue to defend the rights of libraries to own, lend, and preserve books.”Read statement
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The Dispute Index. "EFF defends controlled digital lending on appeal". First published: 2026-10-11. Last updated: 2026-10-11. https://disputeindex.com/events/5537-eff-advances-internet-archive-s-argument-that-controlled